THIRD AMENDMENT TO CREDIT AGREEMENT
-----------------------------------
CONSENT AND RELEASE OF GUARANTOR
--------------------------------
THIS THIRD AMENDMENT TO CREDIT AGREEMENT CONSENT AND RELEASE OF
GUARANTOR, dated as of December 13, 2004 (this "Amendment"), is entered into by
and among INTERMAGNETICS GENERAL CORPORATION, a Delaware corporation (successor
in interest to Intermagnetics General Corporation, a New York corporation) (the
"Borrower"), certain Domestic Subsidiaries of the Borrower as Guarantors (the
"Guarantors" and together with the Borrower, the "Credit Parties"), the Lenders
identified on the signature pages hereto and WACHOVIA BANK, NATIONAL
ASSOCIATION, as administrative agent for the Lenders (the "Administrative
Agent").
W I T N E S S E T H
WHEREAS, the Borrower, the Guarantors, the Administrative Agent and the
Lenders are parties to that certain Credit Agreement dated as of December 17,
2003 (as previously amended and modified and as further amended, modified,
supplemented or restated from time to time, the "Credit Agreement"; capitalized
terms used herein shall have the meanings ascribed thereto in the Credit
Agreement unless otherwise defined herein);
WHEREAS, subsequent to the closing of the Credit Agreement,
Intermagnetics General Corporation, a New York corporation, reincorporated in
the State of Delaware as Intermagnetics, Inc., changed its legal name to
Intermagnetics General Corporation, a Delaware corporation, and assumed, as
successor in interest, all the rights and obligations of the Borrower under the
Credit Agreement;
WHEREAS, the Borrower has notified the Lenders that it intends to sell
its wholly-owned Subsidiary, IGC-Polycold Systems Inc. ("Polycold"), for
approximately $52,400,000 in each consideration (the "Polycold Divestiture");
WHEREAS, the Borrower has requested that the Lenders consent to the
Polycold Divestiture and agree to release Polycold from its obligations as a
Guarantor under the Credit Agreement; and
WHEREAS, the Lenders have agreed to the amendment, consent and release
requested by the Borrower, subject to the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
AMENDMENT
---------
1.1 Amended Definition. The definition of "Borrower" set forth in
Section 1.1 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Borrower" shall mean Intermagnetics General Corporation, a Delaware
corporation (successor in interest to Intermagnetics General Corporation, a New
York corporation).
SECTION 2
CONSENT
-------
2.1 Notwithstanding the terms of Sections 6.4(a)(iv) and 6.7 of the
Credit Agreement and any other terms to the contrary contained in the Credit
Agreement, the Lenders hereby consent to the Polycold Divestiture.
Notwithstanding the terms of 2.7(b) of the Credit Agreement, the Lenders hereby
agree that the Credit Parties shall not be required to apply the Net Cash
Proceeds derived from the Polycold Divestiture as a mandatory prepayment of the
outstanding Loans. The consents set forth in this Section 2 shall be effective
solely with respect to the specific circumstances of the Polycold Divestiture
and, except as specifically agreed to in this Section 2, the Credit Agreement
shall remain in full force and effect according to its terms.
SECTION 3
RELEASE
-------
3.1 The Lenders hereby release Polycold from all of its obligations as
a Guarantor under the Credit Agreement and the other Credit Documents.
SECTION 4
CLOSING CONDITIONS
------------------
4.1 Closing Conditions.
This Amendment shall be effective as of the date hereof upon
satisfaction of the following conditions precedent, in form and substance
reasonably acceptable to the Administrative Agent:
(a) Amendment. The Administrative Agent shall have received a copy
of this Amendment duly executed by each of the Credit Parties and the
Lenders.
2
(b) Material Terms. The Administrative Agent and the Lenders shall
have received a description of the material terms of the Polycold
Divestiture, in form and detail reasonably satisfactory to the Lenders.
All legal, tax, accounting, business and other matters relating to the
Polycold Divestiture shall be reasonably satisfactory in all material
respects to the Administrative Agent.
(c) Balance Sheet. The Administrative Agent and the Lenders shall
have received a consolidated balance sheet of the Borrower and its
consolidated Subsidiaries, prepared on a pro forma basis after giving
effect to the Polycold Divestiture.
(d) Other Documents. The Administrative Agent and the Lenders shall
have received such other documentation as the Administrative Agent or
any Lender may reasonably request in connection with the foregoing.
SECTION 5
MISCELLANEOUS
-------------
5.1 Representation and Warranties of the Credit Parties. Each of the
Credit Parties represents and warrants to the Lenders as follows:
(a) It has taken all necessary action to authorize the execution,
delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by such
Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental Authority
or third party is required in connection with the execution, delivery
or performance by such Person of this Amendment.
(d) The representations and warranties of such Person set forth in
Article III of the Credit Agreement are, subject to the limitations set
forth therein, true and correct as of the date hereof (except for those
which expressly relate to an earlier date).
5.2 Reaffirmation of Credit Party Obligations.
(a) Intermagnetics General Corporation, a Delaware corporation
(successor in interest to Intermagnetics General Corporation, a New
York corporation), hereby ratifies the Credit Agreement (as amended
3
the Credit Agreement (as amended and modified by this Amendment) and
the other Credit Documents and acknowledges and reaffirms (i) that, as
the Borrower, it is bound by all terms of the Credit Agreement (as
amended and modified by this Amendment) and the other Credit Documents
applicable to it and (ii) that, as the Borrower, it is responsible for
the observance and full performance of its respective Credit Party
Obligations.
(b) Each Guarantor hereby ratifies the Credit Agreement (as amended
by this Second Amendment) and the other Credit Documents and
acknowledges and reaffirms (i) that it is bound by all terms of the
Credit Agreement (as amended by this Second Amendment) and the other
Credit Documents applicable to it and (ii) that it is responsible for
the observance and full performance of its respective Credit Party
Obligations.
5.3 Credit Document. This Amendment shall constitute a Credit Document
under the terms of the Credit Agreement.
5.4 Expenses. The Borrower agrees to pay all reasonable costs and
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Amendment, including, without limitation, the
reasonable fees and expenses of Xxxxx & Xxx Xxxxx, PLLC, and any previously
incurred fees and expenses which remain outstanding on the date hereof.
5.5 Entirety. This Amendment and the other Credit Documents embody the
entire agreement between the parties hereto and supersede all prior agreements
and understandings, oral or written, if any, relating to the subject matter
hereof.
5.6 Counterparts/Telecopy. This Amendment may be executed and delivered
(A) in two or more counterparts, each of which shall constitute an original but
all of which when taken together shall constitute one contract and (B) by
facsimile or electronic signature, which shall be deemed for all purposes to be
an original signature.
5.7 Governing Law. This Amendment and the rights and obligations of the
parties under this Amendment shall be governed by, and construed and interpreted
in accordance with, the law of the State of New York.
5.8 Consent to Jurisdiction; Service of Process; Waiver of Jury Trial.
The jurisdiction, services of process and waiver of jury trial provisions set
forth in Sections 9.14 and 9.17 of the Credit Agreement are hereby incorporated
by reference, mutatis mutandis.
5.9 Further Assurances. The Credit Parties agree to promptly take such
action, upon the request of the Administrative Agent, as is reasonably necessary
to carry out the intent of this Amendment.
[Signature Pages Follow]]
4
INTERMAGNETICS, INC.
THIRD AMENDMENT TO CREDIT AGREEMENT
CONSENT AND RELEASE OF GUARANTOR
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed under seal and delivered as of the date
and year first above written.
BORROWER: INTERMAGNETICS GENERAL CORPORATION,
-------- a Delaware corporation (successor in
interest to Intermagnetics General
Corporation, a New York corporation)
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: EVP & CFO
GUARANTORS: INVIVO CORPORATION,
---------- a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
IGC-MEDICAL ADVANCES INC.,
a Wisconsin corporation
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
SUPERPOWER INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
INTERMAGNETICS, INC.
THIRD AMENDMENT TO CREDIT AGREEMENT
CONSENT AND RELEASE OF GUARANTOR
GUARANTORS cont: INVIVO RESEARCH CORPORATION,
---------- a California corporation
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
MEDICAL DATA ELECTRONICS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
MRI DEVICES CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
INTERMAGNETICS, INC.
THIRD AMENDMENT TO CREDIT AGREEMENT
CONSENT AND RELEASE OF GUARANTOR
ADMINISTRATIVE AGENT
--------------------
AND LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION,
----------- as Administrative Agent and as a Lender
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
INTERMAGNETICS, INC.
THIRD AMENDMENT TO CREDIT AGREEMENT
CONSENT AND RELEASE OF GUARANTOR
JPMORGAN, CHASE BANK, N.A.
(F/K/A JPMORGAN CHASE BANK)
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: VIP
INTERMAGNETICS, INC.
THIRD AMENDMENT TO CREDIT AGREEMENT
CONSENT AND RELEASE OF GUARANTOR
KEYBANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
INTERMAGNETICS, INC.
THIRD AMENDMENT TO CREDIT AGREEMENT
CONSENT AND RELEASE OF GUARANTOR
COMERICA BANK
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Account Representative
